In re Palacios

Application for Leave to File a Second or Successive Motion
to Vacate, Set Aside, or Correct Sentence, 28 U.S.C. §
2255(h)

Before: WILSON, ROSENBAUM and NEWSOM, Circuit Judges.

BY THE
PANEL:

Pursuant
to 28 U.S.C. §§ 2255(h) and 2244(b)(3)(A), Felix M.
Palacios has filed an application seeking an order
authorizing the district court to consider a second or
successive motion to vacate, set aside, or correct his
federal sentence, 28 U.S.C. § 2255. Such authorization
may be granted only if this Court certifies that the second
or successive motion contains a claim involving:

(1) newly discovered evidence that, if proven and viewed in
light of the evidence as a whole, would be sufficient to
establish by clear and convincing evidence that no reasonable
factfinder would have found the movant guilty of the offense;
or

(2) a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was
previously unavailable.

28 U.S.C. § 2255(h). "The court of appeals may
authorize the filing of a second or successive application
only if it determines that the application makes a prima
facie showing that the application satisfies the requirements
of this subsection." Id. § 2244(b)(3)(C);
see also Jordan v. Sec'y, Dep't of Corrs.,
485 F.3d 1351, 1357-58 (11th Cir. 2007) (explaining that this
Court's determination that an applicant has made a
prima facie showing that the statutory criteria have
been met is simply a threshold determination).

In his
application, Palacios raises one claim. He relies on a
"new rule of constitutional law," as announced in
Rehaif v. United States, 588 U.S. __, 139 S.Ct. 2191
(2019), to challenge his conviction for possessing a firearm
as a convicted felon, in violation of 18 U.S.C. §
922(g). He argues that his conviction and sentence under
§ 922(g) should be vacated because the government did
not prove-as he argues Rehaif requires-that he knew
he possessed a firearm or that he knew he was a felon when he
possessed the firearm. Additionally, Palacios asks this Court
to hold his application in abeyance until the Supreme Court
makes its holding in Rehaif retroactively applicable
to cases on collateral review.

Here,
Palacios's claim fails to meet the statutory criteria,
and this Court should deny it. See 28 U.S.C. §
2255(h)(2). His claim relies solely on Rehaif, which
did not announce a "new rule of constitutional
law," but, instead, clarified that, in prosecuting an
individual under 18 U.S.C. § 922(g) and 18
U.S.C. § 924(a)(2)-which provides that anyone who
"knowingly violates" § 922(g) can be
imprisoned for up to 10 years-the government must prove that
the defendant knew he violated each of the material elements
of § 922(g). Rehaif, 139 S.Ct. at 2195-96
(emphasis added). Moreover, even if Rehaif had
announced a new rule of constitutional law, as Palacios
concedes in his application, it was not made retroactive to
cases on collateral review by the Supreme Court. See
Tyler v. Cain, 533 U.S. 656, 661-66 (2001).

Accordingly,
Felix M. Palacios has failed to make a prima facie
showing of the existence of either of the grounds set forth
in 28 U.S.C. § 2255, and his application for leave to
file a second or successive motion is hereby DENIED.

ROSENBAUM, Circuit Judge, concurring:

Palacios
wishes to raise a claim under Rehaif v. United
States, 139 S.Ct. 2191 (2019), seeking to vacate his
conviction under 18 U.S.C. §§ 922(g) and 924(a)(2),
based on the assertion that the government failed to allege
and prove he had knowledge he possessed a firearm and was a
felon. I concur in the panel's order because I must:
Palacios's claim is not cognizable under 28 U.S.C. §
2255(h), since it involves only a new rule of statutory law,
not constitutional law. And in this Circuit, Palacios's
claim is not cognizable under 28 U.S.C. § 2255(e),
either, because under McCarthan v. Director of Goodwill
Industries-Suncoast, Inc., 851 F.3d 1076, 1093 (11th
Cir. 2017) (en banc), by which we are bound, we held
that a prisoner may file a second or successive claim for
habeas relief, challenging his conviction through that
subsection only when the sentencing court is
unavailable.[1]

I write
separately, though, because I continue to believe that
McCarthan is incorrect as a matter of law, and new
rules of statutory law that are retroactively applicable must
be cognizable under 28 U.S.C. § 2255(e), §
2255's constitutional-failsafe provision. As I have
previously explained, see McCarthan, 851 F.3d at
1121-58 (Rosenbaum, J., dissenting), § 2255(e), known as
the saving clause, serves as a failsafe mechanism to protect
§ 2255 from unconstitutionality by providing a
substitute remedy for habeas corpus relief that § 2255
otherwise precludes but the Suspension Clause may require.
Retroactively applicable new rules of statutory law, such as
the one articulated in Rehaif, present claims that
fall into that category.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;To
understand why, we need look no further than Bailey v.
United States, 516 U.S. 137 (1995), and Bousley v.
United States, 523 U.S. 614 (1998). In Bailey,
the Supreme Court construed 18 U.S.C. &sect; 924(c)(1),
which, at the time, imposed a prison term upon a person who
"during and in relation to any . . . drug trafficking
crime . . . uses or carries a firearm," to require
evidence that the defendant actively employed the firearm
during and in relation to the predicate crime.
Bailey, 516 U.S. at 142-43. Previously, some courts
had ...

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